La Follette v. City of Fairmont, CC806

• Decision Date: 30 June 1953
• Docket Number: No. CC806,CC806
• Citation: 138 W.Va. 517,76 S.E.2d 572
• Parties: LA FOLLETTE, v. CITY OF FAIRMONT et al.
• Court: West Virginia Supreme Court

Page 572

76 S.E.2d 572

138 W.Va. 517

LA FOLLETTE, v. CITY OF FAIRMONT et al.

No. CC806.

Supreme Court of Appeals of West Virginia.

Submitted April 21, 1953.

Decided June 30, 1953.

Syllabus by the Court.

1. Chapter 89, Article 8, Acts of the Legislature, 1949, Regular Session, does not contravene the 'due process' provisions of Article III, Section 10 of the Constitution of this State, and of XIV Amendment to the Constitution of the United States.

2. The adoption of Ordinances 213 and 222 by the Board of Directors of the City of Fairmont constitutes a valid exercise of legislative power conferred upon the governing body of that municipality.

3. Courts will not make inquiry as to the truth or falsity of facts upon which action of legislative body is predicated, where such body has sole jurisdiction of the subject.

4. A preliminary estimate or data, relative to the cost of street improvement, is advisory only; and though there may be a considerable variance between the amount of such estimate and the final cost of the street improvement, such variance is not a sufficient ground for holding paving assessments void, where no fraud, collusion or other wrongdoing are alleged and shown.

5. A landowner, against whose land a paving assessment has been made, who knows, or is put upon inquiry and should have known, the cost of such paving; who makes no protest until after the paving has been completed; and who does not avail himself of a legal or equitable remedy until after the paving has been completed, is estopped from assailing the validity of the paving assessment, in the absence of fraud, wrongdoing, collusion or confiscatory action.

Herschel Rose, Jr., Fairmont, for plaintiff.

L. E. Johnson, Alfred Putnam, Fairmont, for defendants.

LOVINS, Judge.

Robert M. La Follette, the plaintiff in this suit, seeks a declaratory judgment under provisions of Chapter 26, Acts of the Legislature, 1941, Regular Session, seeking to test the validity of a paving assessment against his land. He brought this suit in the Circuit Court of Marion County, West Virginia; against the City of Fairmont, a municipal corporation, hereinafter referred to as 'city'; Albert F. Robinson, James H. Hanway, Andrew C. West and William G. Meyer, who constitute the Board of Directors of that city, hereinafter designated as 'board'; Fogle F. Earp, Norman Ward, doing business as Norman Ward & Co.; Chauncey Browning, as Attorney General of the State of West Virginia; and the unknown holders of paving assessment certificates issued by the City of Fairmont, West Virginia, pursuant to its Ordinance Number 222.

The plaintiff challenges the validity of Chapter 89, Acts of the Legislature, 1949, Regular Session, Ordinances Numbers 213 and 222, passed by the board of the city, and seeks a declaration of his rights as against the defendants under the above statute and ordinances. The real attack made by the plaintiff is directed against the validity of a paving assessment made by the city against certain real estate owned by him.

The city, the board, Earp and Ward, jointly and severally, demurred to the petition of plaintiff, assigning numerous grounds of demurrer.

The trial court overruled the demurrer, and on the joint application of plaintiff and defendants, certified fifteen questions to this Court. The questions so certified are in the exact language of the grounds of demurrer, assigned by the defendants.

Plaintiff alleges that he is the owner of certain real estate situate on the north side of Fairfax Street in that city. The real estate owned by plaintiff abuts 232.5 feet on the northern line of Fairfax Street and extends in a northerly direction 200 feet to the southern boundary line of Michael Section to Coogle Addition. The northern boundary line extends a distance of 228 feet to the eastern line of Vermont Avenue in the City of Fairmont.

A dwelling house is situate on plaintiff land, which the plaintiff and members of his family have occupied as a residence, before and since the street was paved.

The defendants, members of the board of the city, constitute the governing body of said city; defendant Earp is a citizen of Fairmont and defendant Ward is a resident of the City of Pittsburgh, Pennsylvania.

The plaintiff and a number of other landowners, on or about the 21st day of August, 1950, signed and filed with the board a petition, requesting that the board permanently improve Fairfax Street and a number of other streets, by paving the same; and, that the cost of such improvements be assessed to the owners of land abutting on the streets so improved.

The proposed improvement, notices and other procedure were to be done under provisions of Chapter 89, Acts of the Legislature, 1949, Regular Session.

The board published a notice in a newspaper of general circulation, in accordance with provisions of Chapter 89, id. The notice fixed the 19th day of September, 1950, as the day for a special meeting when protests would be heard against the improvement.

In conformity with the statutory provisions, the notice specified that plans, specifications, profiles and estimates would be considered by the board at the special meeting. Notwithstanding the statement in the notice of such meeting, plaintiff alleges that no such plans, specifications or profiles relating to the permanent improvement of Fairfax Street were presented or considered by such board, and that the only data considered by the board was an informal written statement made by the City Engineer, showing the length of Fairfax Street as 610 feet, the various amounts of materials to be furnished and work to be performed, aggregating a cost of $8,373.75; that the cost per linear foot, including curb, would be $9.18. Some of the owners of land abutting on other streets protested against the making of the improvements on other streets, and the board omitted the improvement of such streets, but the plaintiff and other owners of land abutting on Fairfax Street made no protest. Plaintiff avers that he believed the estimate of $9.18 per linear foot to be reasonable, and that he relied upon such estimate.

After the public hearing by the board, the Ordinance Number 213 was adopted on the 9th day of October, 1950, authorizing improvement of Fairfax Street, between Vermont Avenue and Marion Street. Other streets were included in Ordinance Number 213, but the improvement of those streets is not involved in this proceeding. That ordinance authorized the assessment of abutting landowners; directed the city engineer and director of streets to advertise for bidders to do the work of improvement. Ordinance Number 213 set forth that plans, specification, estimates and profiles should show the proposed grade and sufficient data for any owner of abutting property to calculate approximately the proportionate part of the estimated cost which might be assessed against his property. The plaintiff denies the existence of such data and information and alleges that the statement in Ordinance Number 213, in respect thereto, is not true; that no plans, specifications, estimates or profiles, other than the data of the city engineer, were prepared.

After the adoption of Ordinance Number 213, there was an advertisement for bids to construct the improvement on Fairfax Street, between Vermont Avenue and Marion Streets, as well as other streets, such advertisement having been published October 13 and October 16, 1950. Pursuant to the advertisement, two bids were received for performing the work on the various streets. Fogle F. Earp, being the lowest bidder, was awarded the contract for doing the work. The plaintiff alleges that the bids were for a total contract price, and were made on the unit cost basis; and that the contractor did not make any firm bid for the total amount to be paid for the work to be performed. In consequence thereof, plaintiff alleges that the owners of the land to be improved, under Ordinance Number 213, could not calculate or determine the cost of such improvement, or determine whether the bids were excessive.

The bid for doing work on Fairfax and other streets was awarded on November 6, 1950. The proposal of the contractor, Earp, and the acceptance by the city, was entered of record, which was the only contract between the city and the contractor for the improvement of streets covered by the proposal, including Fairfax Street. In the month of February, 1951, after the contract had been let, the city engineer prepared plans and profiles of said improvement, but did not prepare specifications.

During the month of May, 1951, the board relieved the city engineer of the duty of supervising the work, and employed an engineering corporation in his stead. The corporation so employed prepared complete plans, specifications and profiles for the improvement of said streets, such preparation having been completed on the ___ day of August, 1951.

The improvements consisted of certain excavation, filling, construction of concrete curb, and the construction of a stone base and asphalt surface thirty feet wide.

The engineering corporation made a report to the board, from which it was disclosed that the improvement above mentioned cost $16.325 per linear foot, and that the total cost to be assessed against plaintiff would be $3,795.56. The board, upon such report, gave notice that the assessment against various landowners would be made, including the assessment of $3,795.56 against plaintiff.

Plaintiff and other landowners appeared before the Board of Directors of the City of Fairmont on the 14th day of September, 1951, and filed a written protest, but instead of reducing such assessment, the board corrected the same and made an assessment against plaintiff of $3,950.15. A paving assessment certificate representing said assessment was issued against the land of plaintiff, containing the provisions with reference to installments, payment and time of payment, as required by the statute and...